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VOLKSWAGEN DE MEX. v. GERMANISCHER LLOYD

July 18, 1991

VOLKSWAGEN DE MEXICO, S.A., ET AL., PLAINTIFFS,
v.
GERMANISCHER LLOYD, KRUPP MAK MASCHINENBAU GMBH, AND J.J. SIETAS KG SCHIFFSWERFT, GMBH AND CO., DEFENDANTS. GOODYEAR TIRE CO., (U.S.A.) INC., PLAINTIFF, V. GERMANISCHER LLOYD, KRUPP MAK MASCHINENBAU GMBH, AND J.J. SIETAS KG SCHIFFSWERFT, GMBH AND CO., DEFENDANTS.



The opinion of the court was delivered by: Cedarbaum, District Judge.

  AMENDED OPINION AND ORDER

These related admiralty actions, both of which were filed in February 1990, arise out of the disappearance and presumed loss of the M/V Tuxpan ("Tuxpan") in the North Atlantic in February, 1987. Plaintiffs are shippers, consignees, owners, and insurers of cargo that was lost when the Tuxpan disappeared. Defendants Krupp MaK Maschinenbau GmbH ("Krupp"), the builder of the Tuxpan's engine, and J.J. Sietas KG Schiffswerft, GmbH & Co. ("Sietas"), the builder of the Tuxpan, move to dismiss these actions for lack of personal jurisdiction. Krupp, Sietas, and Germanischer Lloyd ("Germanischer"), a classification society that surveyed and certified the ship, also move to dismiss these actions on the ground of forum non conveniens. Plaintiffs move to transfer to the Southern District of Texas the claims against any defendant over which personal jurisdiction does not exist in this court. Because plaintiffs have not shown that Krupp and Sietas are subject to personal jurisdiction in New York or in Texas, the motions to dismiss the complaint are granted, and plaintiffs' motion to transfer is denied. I will not consider Germanischer's forum non conveniens motion until the remaining parties have had an opportunity to address the effect on that issue of the dismissal of Krupp and Sietas.

THE FACTS

The following facts pertaining to personal jurisdiction are from the complaints and the affidavits and exhibits submitted by the parties. Plaintiffs have made factual statements in their memoranda of law which have no support in the complaints or the affidavits. I do not consider those assertions.

The Tuxpan disappeared in the North Atlantic in February, 1987 en route to unidentified ports in Mexico and the United States from Bremen, Germany (then West Germany). Its cargo had been loaded in Bremen and in Antwerp, Belgium. The Tuxpan was registered in Mexico and was owned by Tecomar, a Mexican corporation.

Most of the 128 plaintiffs in these actions are corporations; a few are individuals. According to the complaints, the corporate plaintiffs are registered and the individual plaintiffs reside in the following countries: forty-two plaintiffs in Mexico, seventeen in the United States, eight in France, six in Germany, one in Switzerland, one in the Netherlands, one in the United Kingdom, and fifty-two in unidentified countries. Plaintiffs' counsel states in an affidavit that sixty-nine plaintiffs are Mexican, and thirty-two plaintiffs are registered or reside in the United States. All three defendants are German corporations.

Germanischer has an office in New York and, accordingly, concedes that it is subject to the personal jurisdiction of this court.

Krupp has submitted undisputed affidavits that show that Krupp manufactures engines in only one factory, and that that factory is located in Germany. Plaintiffs do not allege that Krupp has any office, property, or employees in the United States. However, according to an affidavit from plaintiffs' counsel, Krupp has an Illinois-based subsidiary with a New Jersey office, and another subsidiary in Ontario, Canada. Representatives of the Ontario subsidiary attended an exposition in New York in 1989. Plaintiffs' counsel states that he does not know to what extent either subsidiary acts on behalf of Krupp or transacts business in New York. Krupp has submitted affidavits stating that one employee of the Illinois subsidiary operated an office out of his home in New Jersey, but that that employee left the subsidiary's employ in 1989, and that the Illinois subsidiary has not effected any sales in New York since 1984. Krupp has also had a contractual relationship with Golten Marine Co., Inc. of Brooklyn, New York, but, according to its affidavits, Krupp has had no transactions with Golten Marine since 1982.

Krupp advertises in maritime publications which are distributed in New York and throughout the United States. According to Krupp's affidavits, it placed its advertisements with the publications' sales offices in Germany. Plaintiffs' counsel states that Krupp's ads are identical to those of its subsidiaries.

Plaintiffs' counsel also states, on information and belief, that Krupp had an agency relationship with an unidentified company in Houston which was terminated in or about 1988. According to Krupp, its Illinois subsidiary has an agreement, which it states is not an agency agreement, with a company in LaPorte, Texas, which authorizes that company to conduct service operations on marine engines and related products manufactured by Krupp and authorizes the company to purchase spare parts from the subsidiary at a discount.

Plaintiffs do not allege that Sietas, the builder of the Tuxpan, has ever had any contact with New York. Sietas has submitted undisputed affidavits showing that the Tuxpan was assembled at its only place of business, its shipyard in Hamburg, Germany.

In 1987, Tecomar brought a proceeding in this district for limitation of liability arising out of the loss of the Tuxpan. Plaintiffs were parties to the limitation of liability action. Defendants were not. According to plaintiffs' counsel, "extensive substantive evidence was obtained and developed which is relevant to the defendants' liability in the present action." This evidence includes publications, pamphlets, drawings, contracts, ...


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